Reminder: Digital Document Policy

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If you still don’t have one, get

cracking; the courts are expecting it 

            Over and over again, the law of digital evidence is telling employers that they face sanctions if records disappear after they are on notice of a discrimination claim or other dispute. 

            It is essential that you have a policy and procedure in place NOW, and not when the claim comes in the door.  This policy and procedure governs the handling of all digital files, whether Word or Wordperfect documents, spreadsheets or CAD generated documents, scanned records, e mails, text messages, or any other thing that stores electronic data and was in your custody or control. 

            A digital data policy and procedure would provide something like what follows.  The implementation of any policy and procedure should not be considered on a cookie cutter basis, especially a suggested example like this one.  The following represents a composite of what the courts expect to find: 

            “DIGITAL DOCUMENT POLICY 

            ABC Corporation believes good corporate practices demand the thoughtful and conscientious creation, management, and storage of all digital data.  ABC sets forth this policy and procedure to assure the proper use of digital data created or stored at the company.  This policy does not supersede our policy governing records retention but supplements it.  

             By “digital document” the company means all information contained in documents and other records and that are created with the use of computers, Internet access, other electronic data devices, and telecommunications equipment, including desktop computers, laptop computers, scanners, e mails, mobile telephones, text messaging, voice mails, and all data storage media such as flash drives, CDs, hard drives, and online storage services.   

            The following procedure applies to all digital data: 

            1.         Whenever a claim is made against the company or any of its officers or managers, by any person, business entity, or governmental entity of any kind, a “hold” is in effect as soon as the company is on notice of this claim.  This “hold” shall remain in effect until such time as the claim is withdrawn, resolved, or subject to a final adjudication in the courts. 

            2.         “Claim” is a term to be used in a broad sense and means any asserted or unasserted claim, whether threatened or filed with any administrative agency or court, and includes but is not limited to correspondence directed to the company, a charge or complaint filed informally or formally with any government agency or law enforcement entity, a grievance filed pursuant to any collective bargaining agreement or non-union dispute resolution procedure, or a lawsuit drafted but not filed, or filed but not served, or filed and served on the company or any of its officers, directors, agents, or attorneys. 

            3.         By “hold” the company means that no digital data reduced to a document of any kind may be altered, deleted, or corrupted, either as to its content, date of creation, or software creation or word processing format.  Instead, it must be preserved, i.e., held, until further notice. 

            4.         All e mails and text messages generated by or received by any company employee using company devices, whether the e mails or text messages are work-related or not, are subject to the hold requirement.  Furthermore, all e mails sent or received by any company manager must be printed out and stored digitally or by paper. 

            5.         This policy and procedure shall be administered by the chief operating officer, human resources director, and outside counsel.  The COO is principally responsible for hold orders and digital document preservation, and will promptly advise all appropriate personnel when a claim is threatened or filed and a hold is in effect. 

            6.         Any manager or person with supervisory authority who acts contrary to the requirements of this policy and procedure is subject to discipline, up to and including immediate dismissal.

3/24/10